Michigan Court of Appeals; Docket #259480; Unpublished
Judges Whitbeck, Zahra, and Donofrio; unanimous; per curiam
Official Michigan Reporter Citation: Not applicable, Link to Opinion 
STATUTORY INDEXING:
Serious Impairment of Body Function Definition (Kreiner Era: 1996-2010) [§3135(7)]
General Ability / Normal Life Element of Serious Impairment [3135(7)]
Evidentiary Issues [3135]
TOPICAL INDEXING:
Not applicable
CASE SUMMARY:
In this unanimous unpublished per curiam opinion, decided after the Supreme Court’s decision in Kreiner v Fischer [RB #2428] interpreting the statutory definition of serious impairment of body function, the Court of Appeals reversed the trial court order granting summary disposition in favor of defendants on plaintiffs’ claim for non-economic losses.
The plaintiff in this case sustained a broken femur and hip, temporal mandibular joint (TMJ) condition, and depression. Plaintiff underwent ORIF surgery on her femur and required surgery on her hip. She was hospitalized for five days and was bedridden for two months. As plaintiff began to recover, she used a wheelchair for one month, a walker for one month, crutches for one month, and a cane for three months. In addition, she received 35 sessions of physical therapy. The trial court determined that because plaintiff was not permanently injured, defendants were entitled to summary disposition. The Court of Appeals disagreed and reversed, noting that an injury does not need to be permanent in order to affect the plaintiff’s course and trajectory of her normal life. The court also noted that plaintiff’s leg and hip injuries affected her ability to walk for approximately five months and that during this time, plaintiff was unable to lead her normal life. Moreover, the court concluded that plaintiff’s injuries were sufficiently similar to the injuries sustained by the plaintiffs in Cassidy v McGovern, 415 Mich 483 (1982) [RB #608] and Kern v Blethen-Coluni, 240 Mich App 333 (2000) [RB #2132], to meet the threshold requirement of serious impairment of body function. However, the Court of Appeals agreed with the trial court that plaintiff’s TMJ and depression did not independently satisfy the serious impairment threshold. As to the TMJ, there was a question regarding whether it was related to her motor vehicle accident. And, even if it was related to the accident, it only bothered her for about two days and she rated its severity as a 1 on a 0 to 10 scale. As to her depression, it lifted as she recovered. In this regard, the court stated:
“We agree that the trial court improperly focused on ‘the rest of [plaintiff’s] life’ rather than ‘the course or trajectory of the plaintiff’s normal life.’ . . . The trial court’s focus on the future of plaintiff’s injury is inconsistent with statements from our Supreme Court, ‘that the duration of the impairment is short does not necessarily preclude a finding of a “serious impairment of body function[.]”’. . . Further, . . . plaintiff’s impairment is sufficiently similar to the impairments suffered by the plaintiffs in Cassidy and Kern to meet the threshold requirement of serious impairment of body function. Plaintiff’s impairment shares many of the same features as those impairments suffered by the plaintiffs in Cassidy and Kern, including the seriousness of the initial injury (requiring surgery and hospitalization), the extensive treatment required (35 physical therapy sessions), and the inability to walk at all for a significant time, and only later with the help of a walker, crutches, and a cane. We agree, however, with defendants that evidence of plaintiff’s temporal mandibular joint (TMJ) condition, depression, and frequent falls failed to independently satisfy the statutory threshold. Plaintiff told Dr. Lawrence Ashman that her TMJ prevented her from carrying out usual activities for only two days in a six-month period, and she rated the severity of the TMJ condition at ‘one’ on a zero-to-ten scale. She also did not present any evidence of debilitating depression. Dr. Rosalind Griffin found that plaintiff experienced sadness because of her incapacity, but the sadness was alleviated as her normal life returned. . . . Furthermore, the evidence failed to demonstrate that plaintiff’s TMJ condition or falls were causally connected to the accident. Plaintiff suffered from TMJ before the accident, and the evidence failed to show that her relapse was triggered by the accident.”
